Impeach

by Neal Katyal

  But I also recognized that such guidelines could be effective only if there were mechanisms for bringing wrongdoing to light. Because foreign policy and intelligence operations are by definition often secret, the system depends on women and men who come forward to report misconduct. And the only way they will come forward is if we have clear protocols in place to protect people like them. These are called whistleblower protections, and they are nearly as old as our nation itself.

  Just seven months after the signing of the Declaration of Independence, the Continental Congress in 1778 passed a law proclaiming that “it is the duty of all persons in the service of the United States . . . to give the earliest information to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons.” In other words, our founders recognized that every citizen has a duty to report government wrongdoing—and should be celebrated, not punished, for doing so.

  That law came about as a result of America’s first whistleblowers, naval officers Samuel Shaw and Richard Marven, who in 1777 witnessed their commanding officer, Commodore Esek Hopkins, torturing British prisoners of war. There weren’t any whistleblower protections in 1777, so Shaw and Marven lost their jobs as a result of their bravery—and indeed, their commanding officer went as far as to file a libel suit against them.

  But the whistleblowers eventually complained to the Continental Congress that they had been “arrested for doing what they then believed and still believe was nothing but their duty.” This prompted Congress not only to pass the aforementioned law protecting whistleblowers, but to relieve Hopkins of duty and compensate Shaw and Marven for what they’d been through, to the tune of $1,418.

  Ever since, America hasn’t only protected whistleblowers, we’ve relied on them to provide us with critical information, from Ernie Fitzgerald’s alerts to Congress about the ballooning costs of the C-5 plane in the 1960s to Robert MacLean’s revelation after 9/11 that the US government had been slashing the number of TSA air marshals on flights despite evidence that terrorists had been targeting planes. I know quite a bit about the latter, as I had the privilege of defending MacLean before the Supreme Court. When MacLean blew the whistle on a major terrorist threat that the government was trying to hide, he was rewarded with personal attacks before being fired. I took the case to defend what he did, and ultimately we won. The Supreme Court, in an opinion by Chief Justice Roberts, gave MacLean his life back.

  The MacLean case is the last time the Supreme Court considered a dispute involving a national security whistleblower, and its decision had bipartisan backing. Indeed, in arguments to the Supreme Court in the MacLean case, a group in Congress led by Republican senator Chuck Grassley and Democratic senator Ron Wyden, as well as Republican representative Darrell Issa and the late Democratic representative Elijah Cummings, told the Supreme Court:

  “Whistleblowers play a vital role in Congressional oversight of the federal bureaucracy. Members of Congress cannot station themselves or their staffs in agency offices to watch for evidence of malfeasance . . . Congress thus relies on individuals working within agencies to supply the information it needs to guard the public purse and give effect to the checks and balances that are essential to the separation of powers. By blowing the whistle, those individuals perform an invaluable public service.”

  One reason Congress appreciates the value of whistleblowers is that our representatives have a unique window into the necessity of their work. Whenever the inspector general of the intelligence community receives a whistleblower complaint of “urgent concern” that “appears credible,” after the director of national intelligence reviews the report, the law states that Congress “shall, within 7 calendar days,” be forwarded “such transmittal.”

  This process is critical—because protections for whistleblowers are meaningless if no one besides the inspector general and the director of national intelligence ever finds out about their complaints. But Acting DNI Maguire refused to follow through on his obligation to send Congress the whistleblower complaint within seven days and instead suppressed the report on President Trump’s conduct with Ukraine for weeks.

  Thankfully, in the days after news of the complaint broke, intrepid reporters nonetheless began to publish stories on what information was conveyed in it. And soon, it became clear that the complaint centered around a “promise” President Trump had made to a foreign leader—but while rumors circulated that the controversy had to do with Ukraine, nobody could confirm what the promise was or to what country it had been made.

  That is, until the night of September 19.

  A Whistleblower Report, Revealed

  That was when CNN host Chris Cuomo asked the president’s lawyer, former mayor of New York City Rudy Giuliani, if he had requested the Ukrainian government to investigate Vice President Biden. “No, I actually didn’t,” Giuliani answered. But when Cuomo pushed him, the lawyer provided him with exactly the opposite answer: “Of course I did.”

  Giuliani’s interview sent shockwaves across the country, and soon it became clear that not only had Giuliani asked Ukraine to investigate Vice President Biden but so too had President Trump himself on a phone call with President Zelensky. With every hour, Congress made more requests for the Trump Administration to release the whistleblower’s complaint. But the administration refused.

  So on September 24, more than a month after the whistleblower filed his report but only five days after the pieces started to be put together publicly, the Senate unanimously passed a resolution calling for the release of the whistleblower’s report. And House Speaker Nancy Pelosi decided that she would be opening an impeachment inquiry. “The actions taken to date by the president have seriously violated the Constitution,” she said, declaring, “No one is above the law.”

  The following morning, with pressure mounting after Republicans and Democrats alike called on President Trump to send the whistleblower complaint to Congress, the Trump Administration released what it pawned off as a transcript of President Trump’s July 25 conversation with President Zelensky—a five-page document that appeared to have been edited by the White House but nonetheless confirmed that Trump had pressured Ukraine into investigating his major campaign rival, Vice President Biden. (In Chapter 4, I explain why the “transcript,” which is actually a summary of the conversation, based on the notes of those who witnessed the phone call, might not tell the full story. The document is also reproduced in full in the appendix.)

  As soon as Congress read the “transcript,” they demanded access to the whistleblower’s full report. And on September 26 they would finally have it.

  “The Horse Has Left the Barn”

  The morning IG Atkinson released the whistleblower’s complaint to Congress began as the morning the whistleblower’s complaint might be suppressed forever. In a letter to the House Intelligence Committee, Acting DNI Maguire announced that the whistleblower’s report had been, in effect, downgraded from “urgent” by the Justice Department’s Office of Legal Counsel—an office, it’s worth noting, that falls under the jurisdiction of Attorney General Barr, who was a subject of the report. (Notably, this Legal Counsel opinion has come under severe attack; in an extraordinary move, five dozen sitting inspectors general throughout the federal government criticized it in the strongest of terms.)

  This ruling from the DOJ meant that IG Atkinson and DNI Maguire no longer had an obligation under the law to share the complaint’s contents with Congress. And for a minute it seemed as though the whistleblower report might never be released.

  But later that morning, as DNI Maguire was set to testify before Congress, demands for the release of the report intensified. And eventually, presumably with the unanimous Senate vote ordering the Trump Administration to turn over the whistleblower’s complaint in mind, the report was declassified. “The horse,” Maguire said, after more than a month of being forced to sit on the report, “has left the barn.”

  And, it turned out, the contents of the whistleb
lower report not only confirmed the media’s reporting, but revealed an extensive cover-up of President Trump’s phone call with President Zelensky.

  The Report

  By the time the report was released, nearly every word of it had already been verified by authoritative sources—including by the White House’s own “transcript,” in which President Trump asked President Zelensky to launch an investigation of Vice President Biden. This, many believed, provided reason enough to remove President Trump from office. But the whistleblower’s distillation of what had happened was startling nonetheless, because it described a series of events that were exactly the kind presaged by our founders when they decided to include impeachment in our Constitution.

  “In the course of my official duties,” the whistleblower wrote, “I have received information from multiple US Government officials that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 US election. This interference includes, among other things, pressuring a foreign country to investigate one of the President’s main domestic political rivals. The President’s personal lawyer, Mr. Rudolph Giuliani, is a central figure in this effort. Attorney General Barr appears to be involved as well.”

  This discovery alone would have justified the inspector general’s categorization of the report as “urgent,” but the whistleblower also added a whole new layer to the story: the cover-up.

  The Cover-Up

  When President Trump and President Zelensky’s call had concluded, the whistleblower explained, White House officials were “deeply disturbed by what had transpired.”

  “They told me that there was already a ‘discussion ongoing’ with White House lawyers about how to treat the call because of the likelihood, in the officials’ retelling, that they had witnessed the President abuse his office for personal gain.”

  These White House officials, it turned out, believed the best possible response to the phone call was to cover it up. “In the days following the phone call, I learned from multiple US officials that senior White House officials had intervened to ‘lock down’ all records of the phone call,” the whistleblower wrote, “especially the official word-for-word transcript of the call that was produced—as is customary—by the White House Situation Room.”

  “White House officials told me that they were ‘directed’ by White House lawyers,” he continued, “to remove the electronic transcript from the computer system in which such transcripts are typically stored for coordination, finalization, and distribution to Cabinet-level officials.”

  As the whistleblower reported, after being deleted from the White House’s server, “the transcript was loaded into a separate electronic system that is otherwise used to store and handle classified information of an especially sensitive nature.”

  I worked with some of the most sensitive intelligence information our government possesses in two different administrations. So I know firsthand that only the highest form of protected information, called code-word information, resides on these separate “air-gapped” servers. They are manifestly not the place to store transcripts of calls with foreign leaders, which are generally classified at a lower level because it’s important for officials without top clearances to be able to access them.

  That’s why the decision to lock down records of this phone call was a blatant abuse of the system—because it blocked people who needed the information from obtaining it, and did so for no reason other than to protect President Trump. And it was especially egregious because there’s no evidence that highly classified information of any kind was discussed on the phone call. That’s why it was so easy for the White House to completely declassify the memo once they faced political pressure to do so. And it’s why astute readers who look at the White House memo itself in the appendix will see that it was marked “Secret,” a very low classification ranking. That means it should have been on a system that handles secret materials or even a system that could handle top-secret materials, but it simply didn’t belong in a system specifically reserved for the most highly classified materials.

  The only apparent reason President Trump’s lawyers would have requested that the notes be removed from the computer system was to shield him from the consequences of his statements. As the whistleblower wrote, “One White House official described this act as an abuse of this electronic system because the call did not contain anything remotely sensitive from a national security perspective.”

  In his appendix, the whistleblower reported that, according to White House officials, this was “not the first time under this Administration that a Presidential transcript was placed into this codeword-level system solely for the purpose of protecting politically sensitive—rather than national security sensitive information.” The whistleblower did not specify what other calls had been treated in this way, but members of the press later confirmed this account: Over the course of his presidency, Trump’s White House has similarly suppressed transcripts of conversations with Saudi Arabia’s crown prince, Mohammed bin Salman, and Russia’s president, Vladimir Putin.

  As of this writing, the contents of those discussions remain a mystery.

  Rudy Giuliani’s Pressure Campaign

  The whistleblower’s complaint didn’t end with the description of President Trump’s phone call—or with the details of his administration’s cover-up. The report also made sure to discuss what the whistleblower referred to as “circumstances leading up to the July 25 Presidential phone call,” which proved President Trump wasn’t acting alone.

  The story began, according to the whistleblower, in March 2019, when articles “appeared in an online publication called The Hill,” in which a corrupt Ukrainian prosecutor named Yuriy Lutsenko made a series of false claims about Democrats in the United States. Ukrainian officials, Lutsenko claimed, had “interfered” in the 2016 presidential election in collaboration with the Democratic National Committee. Vice President Biden, he added, had intervened to halt an investigation into a company on whose board his son Hunter had sat. And Lutsenko said that US Ambassador Marie Yovanovitch, who had been critical of his poor record on fighting corruption, had a “do not prosecute” list to protect Democrats.

  President Trump’s own State Department officials, for their part, have said this is an “outright fabrication.” But Lutsenko had a relationship with President Trump’s personal lawyer Rudy Giuliani, whom he had already met with twice earlier in the year. “I went to his office and was there for several hours over three days,” Lutsenko later told a reporter. Giuliani claimed he did this “at the request of the State Department” and has “all the text messages to prove it.”

  “When I talked to [Secretary of State Mike Pompeo],” Giuliani said on CBS, “he said he was aware of it.” Secretary of Energy Rick Perry has confirmed that he’d been told that Giuliani had authority to lead on policy efforts related to Ukraine as well. Even Ambassador Sondland told Congress, “My understanding was the president directed Mr. Giuliani’s participation, that Mr. Giuliani was expressing the concerns of the president.”

  So perhaps it’s no surprise that, on April 25, 2019, President Trump went on Fox News to call Lutsenko’s allegations “big” and “incredible.” Because all evidence indicates that, having deployed Giuliani as his envoy, President Trump was at least in part responsible for the dissemination of these allegations in the first place.

  Four days after that television appearance, Ambassador Yovanovitch, who had attempted to stop Giuliani from trying to influence Ukrainian policies through unofficial channels, was told to hop on “the next plane” back to Washington. And then, on May 6, she was let go, even though, according to her boss, she had “done nothing wrong.”

  “Although I understand that I served at the pleasure of the president,” she told Congress, “I was nevertheless incredulous that the US government chose to remove an ambassador based, as best as I can tell, on unfounded and false claims by people with clearly questionable motives.” />
  When Giuliani was asked in an interview to provide a reason for her dismissal, he said simply she was “removed because she was part of the efforts against the president.”

  About 72 hours after she was let go, on May 9, “The New York Times reported that Mr. Giuliani planned to travel to Ukraine to press the Ukrainian government to pursue investigations that would help the President in his 2020 reelection bid,” wrote the whistleblower. “In his multitude of public statements leading up to and in the wake of the publication of this article, Mr. Giuliani confirmed that he was focused on encouraging Ukrainian authorities to pursue investigations into . . . alleged wrongdoing by the Biden family.”

  This might seem like a spectacular allegation from the whistleblower—but he didn’t need any evidence to prove it. Giuliani himself had told the New York Times the reason for his visit to Ukraine, and he even went so far as to defend his conduct. “There’s nothing illegal about it,” he claimed in the article, before conceding: “Somebody could say it’s improper.” But with the spotlight on him, Giuliani decided to cancel the trip.

  Around this time, according to the whistleblower, US officials became “deeply concerned by what they viewed as Mr. Giuliani’s circumvention of national security decision-making processes to engage with Ukrainian officials and relay messages back and forth between Kyiv and the President.” Ambassadors Volker and Sondland even spoke to Giuliani directly in an attempt to, as the whistleblower put it, “contain the damage . . . to national security.”

  These efforts, however, did not convince Giuliani to end his influence campaign in Ukraine. And “during this same timeframe,” according to the whistleblower, “Ukrainian leadership was led to believe that a meeting or phone call between the President and President Zelensky would depend on whether Zelensky showed willingness to ‘play ball’ on the issues that had been publicly aired by Mr. Lutsenko and Mr. Giuliani.” (By mid-May, I should note, Lutsenko had already retracted his claims about Joe and Hunter Biden.)